Citation NR: 9700678
Decision Date: 01/08/97 Archive Date: 02/03/97
DOCKET NO. 94-43 028 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Boston,
Massachusetts
THE ISSUE
Entitlement to service connection for a low back disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
S. R. Horn, Associate Counsel
INTRODUCTION
The veteran served on active duty from January 1971 to
January 1973.
This matter comes to the Board of Veterans’ Appeals (Board)
on appeal from an August 1992 decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Boston,
Massachusetts, which denied service connection for a back
disorder.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran contends his low back disorder was incurred in
service in 1972, warranting service connection.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that
the veteran’s claim for service connection for a low back
disorder must be denied as not well grounded.
FINDING OF FACT
The veteran’s claim for service connection for a low back
disorder is implausible.
CONCLUSION OF LAW
The veteran’s claim for service connection for a low back
disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West
1991 & Supp. 1996).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Factual Background
The veteran served on active duty in the Air Force from
January 1971 to January 1973. His service medical records
show his back was normal at his December 1970 enlistment
examination, and a medical history form he completed at that
time was negative for any back disorders. Service medical
records from late May 1972 indicate he sustained a contusion
to the upper lumbar area of the spine (T10-L1) after falling
across a chair. It was reported that flexion was intact, and
that there was tenderness in the area of the contusion. The
veteran was treated with heat, rest, and pain medication.
When seen again in early June 1972, it was noted that the
contusion and abrasions were healing. The remainder of the
service medical records are negative for a back disorder.
The December 1972 discharge examination shows the back was
normal, and an accompanying medical history form indicates
the veteran gave a history of occasional recurrent back pain
since the May 1972 fall.
Private medical records show the veteran was hospitalized
from January - February 1978. He complained of low back
pain, and said its onset was a work-related back injury
(lifting an object to feed a printing press) in November
1977. He denied any previous back injuries. The treating
physician indicated he first saw the veteran in December
1977, following this injury. During the hospitalization, the
veteran underwent a personality testing evaluation because
psychological overlay was suspected, and indicated that he
worked building trucks for a few months after service, and
then worked in printing. X-rays showed sacralization of left
L5. The diagnosis was low back derangement and some
residuals, and sacralization of left L5.
The veteran was readmitted to this hospital in April 1978
with complaints of back pain and constant pain in the left
lower extremity. He gave a history of injuring his back at
work in November 1977. X-rays of the lumbar spine revealed
partial sacralization of L5 on the left, and a lumbar
myelogram revealed an extra-dural defect at L4-5 on the left
in keeping with a herniated intervertebral disc.
Electromyographic recordings from the left quadriceps were
suggestive of a neuropathic process in the L5-S1 radicular
distribution. The diagnoses were sacralization of left L5
and a disc lesion at L4-5. The veteran underwent a
diskectomy of the L4-L5 disc and decompression of the left L5
root, and was discharged as much better.
Private medical records from 1979 show the veteran received
treatment for low back pain.
In 1983, the veteran completed a back evaluation form for Re-
hab Associates, Inc. He said he had been diagnosed as having
thoracic-lumbar strain, and gave a history of lumbar disc
surgery in 1977, working for 1 1/2 years, and an incident in
1983. Private psychiatric treatment records from early 1984
note a history of the veteran first injuring his back in 1977
in a job-related accident, disc surgery in 1978, and a second
back injury in 1983.
Private medical records from April - May 1985 show the
veteran complained of pain in the mid-thoracic region with
numbness in the 4th and 5th left fingers for 3 days. The
initial assessment was probable musculoskeletal discomfort,
and pathology was to be ruled out. He returned to the clinic
several days later with complaints of persistent back pain
between the shoulder blades radiating into the distribution
of the latissimus muscles bilaterally. He gave a history of
trimming hedges and doing landscape work the day before the
pain began, which he said was about one week ago. He said
the pain decreased after 3-4 days of bed rest, but returned
after he went back to work. X-rays of the thoracic spine
were normal, except for minimal well-compensated right
lateral scoliosis of the mid-thoracic spine. The diagnosis
was upper back muscle strain.
In August 1985, the veteran complained of acute back pain.
He said he was moving a refrigerator at work when he suddenly
felt pain in the right L5-S1 area and some tingling in the
back of his right calf. He gave a history of an L4-5 disc
resection years ago, and said he had no back problems until
the current problem. The assessment was acute left lumbar
back strain and status post diskectomy several years ago.
In June 1986, he was diagnosed as having left sciatica after
complaining of discomfort in the left posterior thigh. He
gave a history of a similar problem in 1977-78 when he had a
herniated lumbar disc. He said he had done well since that
time with no back pain, and said he did not remember any
particularly traumatic events other than some vague
discomfort in the back without any radiation during the past
week.
In January 1987, he was diagnosed as having muscle strain in
the back, right shoulder, and right pectoral muscles after
shoveling snow and breaking up ice.
Private medical records show the veteran underwent a complete
physical examination in June 1988. He gave a history of back
surgery in 1977 for a lumbar disc without any major problems.
He did not complain of and there were no findings of any back
problems.
Private medical records show that in August 1988 the veteran
complained of back pain since twisting his mid-back while
moving a refrigerator. The assessment was a muscle pull in
the mid-back region, and he was treated with warm compresses,
pain medication, bed rest, and light duty thereafter.
Private medical records from 1990 show continued treatment
for back problems. In May 1990, the veteran complained of
pain in the left side of his neck radiating into the left
shoulder blade area and behind the left knee after an
accident at work with a lawnmower. He denied numbness,
weakness, or any other problems. The diagnosis was
musculoskeletal pain. In June 1990, he was diagnosed as
having muscle strain in the low back after carrying bundles
of shingles as part of a roofing job. In July 1990, he
complained of continued back pain, and indicated he had been
doing heavy roofing work. He was diagnosed as having chronic
back problems, and fitted for a back corset. In September
1990, the veteran underwent an orthopedic evaluation of back
and left leg pain he said originated in a June 1990 work-
related injury. He also gave a history of a 1977 back
operation for a ruptured disc, and said he had been generally
fine since that procedure. X-rays revealed a transitional
vertebral body at the lumbosacral junction with facet
hypertrophy. On a back pain assessment he completed for this
evaluation, the veteran indicated he had low back pain, and
that it began in June 1990 while working on a roof. An
October 1990 CT scan revealed an L4-5 mild to moderate
central para median disc herniation with encroachment and
mild compression on the anterior thecal fac; narrowed left
lateral recess and neural foramen with left-sided facet
hypertrophy; L5-S1 mild to moderate facet hypertrophy without
spinal stenosis; left spondylolysis at L5; and mild annular
bulge without herniation at L3-4.
Letters from Lawrence H. Field, M.D. in 1991 regarding a
worker’s compensation claim filed by the veteran indicate he
began treating the veteran for a herniated disc at L4-5 in
June 1991. He stated the veteran hurt his back due to work-
related injuries in June 1990 due to lifting a refrigerator,
tripping in a hole, and lifting roof tiles. Dr. Field also
indicated the veteran had a history of back surgery in “1975”
for a disc problem, and that the veteran denied having any
back problems since then until the series of injuries in June
1990. He reported that the veteran had a CT scan which
demonstrated a herniated L4-5 disc, and he diagnosed the
veteran as having the same.
In February 1992, the veteran filed a claim for service
connection for a back condition. He reported that he had
injured his back in May 1972 in service, and received
treatment for the back since that time.
VA medical records from November 1992 show the veteran
complained of left leg pain and tenderness of ribs 11 and 12
on the right side. The diagnoses included to rule out
whether there was a rib fracture or contusion and status post
low back disc surgery. X-rays taken in January 1993 showed
the ribs were normal. During a subsequent visit for a
psychiatric disorder, the veteran gave a history of a 1990
herniated disc at L4-5.
VA medical records show the veteran was treated for low back
pain from April to June 1994. Physical therapy progress
notes from May 1994 show the veteran had a fresh red mark on
the mid-thoracic region, especially on the left side. The
physical therapist noted that he denied using a hot pack on
the area, but commented that he had erythema which looked
like a hot pack had been applied. X-rays of the lumbosacral
spine taken in May 1994 were essentially unremarkable. VA
outpatient treatment records from June 1994 show the veteran
complained of left leg pain, burning, and numbness. In June
1994, he underwent a nerve conduction study, at which he gave
a history of low back flare-ups and related left leg pain
since 1972. The impression was chronic low back pain. The
clinician commented that the condition was unrelieved by
laminectomy, and was not evidenced by objective findings on
examination.
The veteran testified at an RO hearing in June 1994. He said
he injured his back in service when he fell from a barstool
and hit his back just above his belt. He said he had no
problems with his back prior to this incident, and had
recurrent back problems thereafter which he self-treated.
The veteran said he reinjured his back after service when he
was working in a printing factory. He said he was guiding 10
40-pound bundles of corrugated cardboard onto a conveyor
belt, and that the bundles jammed and caused his back to
twist. He said he had similar incidents on a continuous
basis, and described them as routine human movements that
caused his back pain to recur. He said the only injury he
had was the fall from the chair in service. The veteran said
he was treated for back problems between separation from
service and his 1977 injury by 2 doctors, and said the
records from both doctors were not available because they
were deceased and he had been told the records were no longer
maintained. The veteran said he did factory work,
landscaping, construction, maintenance, and building
maintenance after service. He said he was granted workman’s
compensation for his back injury, and said the insurance
company attempted to deny his claim by relating the injury to
service.
At the June 1994 hearing, the veteran submitted a written
statement. He said he first injured his back in 1972 in
service, and described the incident. He said he was treated
for the back injury several times in service, and up to the
present day.
The file contains a number of later VA outpatient records
showing treatment for a low back disorder. For example, in
August 1994 the veteran underwent a CT scan; it revealed he
had mild generalized bulging of the L3-4 and L4-5
intervertebral discs and evidence of degenerative joint
disease of the L4-5 facet joint on the left; old laminectomy
defect at L5 on the left; and, congenital smallness of the
bony spinal canal.
The veteran underwent a VA general medical examination in May
1995. He gave a history of low back pain. The diagnosis was
a healthy male with chronic low back pain.
The veteran also underwent a VA orthopedic examination in May
1995. He gave a history of injuring his back in 1972 in
service, and receiving treatment for recurrent back pain many
times in service. He said he injured his back after service
in 1977, had disc surgery in 1978, had intermittent back pain
until 1983 when he developed significant back pain from a
trivial event, and injured his back in 1990 at work. He said
he retired from this job due to the injury. He indicated he
received workman’s compensation for 2 1/2 years following the
1990 injury. Objective findings of the back were negative.
The diagnosis was chronic low back pain with osteoarthritis
of the L4-5 facet, and no evidence of radiculopathy.
II. Analysis
The threshold question regarding the claim, for service
connection for a low back disorder, is whether the veteran
has met his initial burden of submitting evidence to show
that his claim is well grounded, meaning plausible. 38
U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78
(1990). If he has not done so, there is no VA duty to assist
him in developing facts pertinent to his claim, and the claim
must be denied. Id. For the reasons explained below, the
Board finds that the claim for service connection for a low
back disorder is not well grounded.
The requirements of a well grounded claim are summarized in
Caluza v. Brown,
7 Vet.App. 498 (1995). There must be competent evidence of a
current disability (a medical diagnosis). Brammer v.
Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2
Vet. App. 141 (1992). There must also be competent evidence
showing incurrence or aggravation of a disease or injury in
service (lay or medical evidence). Layno v. Brown, 6 Vet.
App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24
(1991). There must also be a nexus between the in-service
injury or disease and the current disability (medical
evidence). Lathan v. Brown, 7 Vet. App. 359 (1995);
Grottveit v. Brown, 5 Vet.App. 91 (1993).
Service connection may be granted for a disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Certain chronic
diseases, including arthritis, which become manifest to a
compensable degree within the year after service, will be
rebuttably presumed to have been incurred in service.
38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.
The veteran’s service medical records show he suffered a
contusion to the upper lumbar area of the back (T10-L1) after
falling from and being struck by a chair in May 1972 in
service. He was then treated with heat, rest, and pain
medication for approximately one week until early June 1972.
The remainder of his service medical records are negative for
any complaints, findings, or treatment of a back disorder,
and the December 1972 discharge examination shows the back
was objectively normal, although the veteran gave a history
of occasional recurrent back pain since May 1972. He was
discharged from service in January 1973.
The first medical evidence of a back disorder after service
is not until late 1977-early 1978, almost 5 years after
service, when the veteran was diagnosed as having low back
derangement from a work-related accident in late 1977. A
congenital or developmental defect, sacralization of L5, was
also noted. In 1978 the veteran underwent low back surgery
for a herniated L4-L5 disc. Medical records since then
describe a chronic low back disorder, with reinjuries of the
back.
The service medical records show only an acute and transitory
contusion of the upper lumbar or mid-back area, and do not
show a chronic low back disorder. There is no medical
evidence of a low back disorder until several years after
service. Under the circumstances, for the service connection
claim to be well grounded, there would have to be competent
medical evidence of causality, linking the post-service low
back condition to service. Caluza, supra. The file contains
no such medical evidence of causality.
Some of the recent medical records contain the veteran’s
self-reported history of his low back problem starting in
service in 1972 (in contrast to his many earlier statements,
relating the problem to post-service industrial injuries),
but the mere transcription of his lay history in the recent
medical records does not constitute competent medical
evidence of causality. LeShore v. Brown, 8 Vet.App. 406
(1995). Similarly, the Board has considered the veteran’s
statements and his testimony at the 1994 RO hearing, in which
he essentially stated that his current low back problems were
caused by the 1972 incident in service. As a layman,
however, he has no competence to give a medical opinion on
the diagnosis or etiology of a condition. Espiritu v.
Derwinski, 2 Vet.App. 492 (1992).
Absent competent medical evidence to link the current low
back disorder to service, the claim for service connection
for a low back disorder must be denied as not well grounded.
ORDER
Service connection for a low back disorder is denied.
L.W. TOBIN
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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